RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2003-03487
                                       INDEX CODE:  108.00
      XXXXXXXXXXXXXXX                   COUNSEL:  ANTHONY W. WALLUK

      XXXXXXXXXX                        HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability discharge with entitlement to severance  pay  be  set  aside,
and he be awarded a  permanent  disability  retirement  with  a  50%  rating
retroactive to 20 May 2002, the date of his release from active duty.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The disability rating (20%) he received for his low back pain was  improper,
as it should have been 40%.  In addition, he should  have  been  compensated
for his chronic  neck  pain  and  his  diagnosed  adjustment  disorder  with
depressed features.  Combined, the ratings should have allowed him a  higher
rating of disability and a disability retirement.

In support of his application, the applicant’s counsel provides a  statement
with six exhibits.  The applicant’s complete submission,  with  attachments,
is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 19 May 1988, following an enlistment in the Army Reserve,  the  applicant
enlisted in the Regular Air Force at the age of 27 in the  grade  of  airman
(E-2) for a period of six years.   He  was  trained  as  a  Fire  Protection
Craftsman and was progressively promoted to the grade of technical  sergeant
(E-6), effective 1 July 1997.

On 29 January 2002, the applicant’s  medical  records  were  reviewed  by  a
Medical Evaluation Board (MEB) following a history of  back  and  neck  pain
since 1988.  The MEB’s diagnosis and findings identified the applicant  with
chronic low back pain, with sciatica bilaterally; neck pain; and  Adjustment
Disorder.  The  MEB  determined  the  conditions  were  incurred  while  the
applicant was entitled to basic  pay  and  were  permanently  aggravated  by
service.  The MEB recommended the applicant’s records  be  referred  to  the
Informal Physical  Evaluation  Board  (IPEB)  for  evaluation.   The  IPEB’s
findings, dated 14 February 2002,  found  the  applicant  unfit  because  of
physical disability incurred in the line  of  duty  and  while  entitled  to
receive basic pay.  Their diagnoses were low back pain  with  radiation  due
to degenerative disc disease (Category I - unfitting  conditions  which  are
compensable and  ratable),  rated  at  20%  disability;  chronic  neck  pain
(Category II - conditions that  can  be  unfitting  but  are  not  currently
compensable or ratable), not rated; and adjustment disorder  with  depressed
features (Category III - conditions that are not  separately  unfitting  and
not compensable or ratable), not rated.  The IPEB recommended the  applicant
be discharged with severance pay with a disability rating  of  20%;  because
of his unfitting, ratable, and compensable  condition;  in  accordance  with
DoD and Veterans Administration Schedule  for  Rating  Disabilities  (VASRD)
guidelines.  On 19 February 2002, the applicant indicated he did  not  agree
with the IPEB’s findings and requested a Formal  Physical  Evaluation  Board
(FPEB).

The FPEB’s findings, dated 14 March 2002,  confirmed  the  findings  of  the
IPEB and recommended the applicant be discharged with severance pay  with  a
disability  rating  of  20%  for  low  back  pain  with  radiation  due   to
degenerative disc disease.  On 15 March 2002, the  applicant  indicated  his
disagreement with the FPEB’s findings  and  submitted  a  rebuttal.   On  10
April 2002, the Secretary of the Air  Force  determined  the  applicant  was
physically  unfit  for  continued  military  service  and  directed  he   be
disability discharged under the provisions of Title 10, United  States  Code
(USC), Section 1203, with severance pay in the grade of  technical  sergeant
computed under Title 10, USC, Section 1212.

The applicant was separated with an honorable  discharge  effective  20  May
2002 with a separation  code  of  JFL  (disability,  severance  pay)  and  a
reentry code of 4K (medically disqualified for continued service).   He  had
served 14 years, 4 months and 19 days on active duty.

Information provided by the Department of Veterans Affairs  (DVA)  indicates
that  the  applicant  is  receiving  disability  pay,  effective  upon   his
separation from active duty, at a combined degree of disability of  80%  for
the following diagnosis:  Condition of the Skeletal  System  at  40%;  Major
Depressive Disorder at 30%;  Condition  of  Skeletal  System  at  10%;  Knee
Condition at 10%;  Residuals  of  Foot  Injury  at  10%;  and  Condition  of
Skeletal System at 10%.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant  is  of  the  opinion  that  no  change  in  the
applicant’s records is warranted.  The BCMR Medical Consultant  states  that
while  on  active  duty,  the  applicant  performed   his   more   sedentary
administrative duties in an exemplary fashion; however, due to  his  chronic
back condition combined with a prolonged  history  of  exceeding  Air  Force
weight standards, it was necessary to refer the applicant for evaluation  in
the Disability Evaluation  System  (DES).   The  preponderance  of  evidence
supports the findings  that  the  applicant’s  chronic  low  back  pain  was
unfitting for his military duties; however, his neck pain and mood  disorder
did not interfere with the performance of his duties and were not  unfitting
at the time he was referred for medical evaluation board.  According to  the
applicant’s service medical records, his depressed  mood  was  diagnosed  as
Adjustment Disorder, a condition that is  a  conditional  response  and  not
ratable or compensable under the rules of the Department  of  Defense  (DoD)
disability system.  The mental  health  narrative  changed  the  applicant’s
diagnosis to  Mood  disorder  due  to  chronic  back  pain  with  depressive
features and Depression affecting chronic back pain;  however,  evidence  of
the record indicates these symptoms were situational in nature and were  not
unfitting  for  duty  as  evidenced  by  the  applicant’s  documented   duty
performance.

The BCMR Medical consultant states that DoD is required to use the VASRD  as
a guideline to rate disabilities that are unfitting for  continued  military
service.   The  applicant’s  rating  of  20%  for  his  back  condition   is
consistent with how the Physical Evaluation Boards (PEBs) have  applied  the
VASRD in similar cases.  Under the new VASRD guidelines not yet  in  use  at
the time of his PEB, the applicant’s condition would be rated 20%  based  on
either the range of motion standard or incapacitation standard.

It  is  the  opinion  of  the  BCMR  Medical  Consultant  that  action   and
disposition in this case were proper  and  equitable  reflecting  compliance
with Air  Force  directives  that  implement  the  law.   The  BCMR  Medical
Consultant’s evaluation is at Exhibit C.

AFPC/DPPD recommends denial of the applicant’s  request.   DPPD  states  the
applicant was treated fairly throughout the DES process and he was  properly
rated under Federal disability guidelines as required by military  laws  and
policy in effect at the time of his evaluation.  It is DPPD’s  opinion  that
the applicant or his counsel failed to provide documentation to justify  why
his medical discharge should be overturned, and he be  awarded  a  permanent
disability retirement with a 50%  disability  rating.   DPPD  wholeheartedly
concurs with the comments  and  recommendation  made  by  the  BCMR  Medical
Consultant that no change in the applicant’s record is warranted.  The  DPPD
evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  counsel  on  21
May 2004 for review and response within 30 days.  As of  this  date,  this
office has received no response.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of an error or injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the case and do not  find  that
it supports a determination that the  applicant’s  discharge  from  the  Air
Force with entitlement to disability severance pay was in error  or  unjust.
Applicant’s contentions are duly noted; however,  we  believe  the  detailed
comments provided by the BCMR  Medical  Consultant  accurately  address  his
allegations.  In view of this  finding,  we  agree  with  the  opinions  and
recommendations of the BCMR Medical Consultant and DPPD and we  adopt  their
rationale as a basis for our conclusion that the applicant has not been  the
victim of either an error or an injustice.  In the absence  of  evidence  to
the contrary, we find no compelling basis to recommend granting  the  relief
sought in this appeal.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of material error  or  injustice;  that  the  application  was
denied without a personal appearance; and that the application will only  be
reconsidered upon the submission of newly discovered relevant  evidence  not
considered with this application.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 15 September 2004, under the provisions of AFI 36-2603:

            Mr. Laurence M. Groner, Panel Chair
            Ms. Jean A. Reynolds, Member
            Ms. Carolyn B. Willis, Member



The following documentary evidence for AFBCMR Docket Number
BC-2003-03487 was considered:

      Exhibit A.  DD Form 149, dated 17 Sep 03, with attachments.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, BCMR Medical Consultant, dated 28 Apr 04.
      Exhibit D.  Letter, AFPC/DPPD, dated 14 May 04.
      Exhibit E.  Letter, SAF/MRBR, dated 21 May 04.




                                  LAURENCE M. GRONER
                                                   Panel Chair